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The Law of Citations and Seriatim Opinions: Were the Ancient Romans and the Early Supreme Court on the Right Track?
The Law of Citations and Seriatim Opinions: Were the Ancient Romans and the Early Supreme Court on the Right Track? JOSHUA M. AUSTIN* I. INTRODUCTION ..................................................................................... 19 II. THE LAW OF CITATIONS ....................................................................... 21 A. A HISTORICAL LOOK AT THE LAW OF CITATIONS ........................... 21 B. THE FIVE JURISTS............................................................................ 24 1. Gaius................................................................................. 24 2. Modestinus........................................................................ 24 3. Papinian............................................................................ 25 4. Paul................................................................................... 25 5. Ulpian ............................................................................... 26 III. SERIATIM OPINIONS.............................................................................. 26 A. THE EARLY SUPREME COURT AND SERIATIM OPINIONS ................. 26 B. THE END OF SERIATIM OPINIONS .................................................... 27 IV. ENGLAND AND THE CONTINUED PRACTICE OF SEPARATE OPINIONS .. 29 V. CHIEF JUSTICE ROBERTS AND HIS THOUGHTS ON MULTIPLE OPINIONS .............................................................................................. 30 VI. THE IMPORTANCE OF ADDITIONAL RATIONALES ................................ 32 A. EXAMPLES OF IMPORTANT -
Petitioner, V
No. 19-___ IN THE Supreme Court of the United States _________ MARK JANUS, Petitioner, v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, ET AL., Respondents. _________ On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit _________ PETITION FOR WRIT OF CERTIORARI _________ JEFFREY M. SCHWAB WILLIAM L. MESSENGER LIBERTY JUSTICE CENTER Counsel of Record 190 South LaSalle Street AARON B. SOLEM Suite 1500 c/o NATIONAL RIGHT TO Chicago, IL 60603 WORK LEGAL DEFENSE (312) 263-7668 FOUNDATION, INC. 8001 Braddock Road Suite 600 Springfield, VA 22160 (703) 321-8510 [email protected] Counsel for Petitioner QUESTION PRESENTED Is there a “good faith defense” to 42 U.S.C. § 1983 that shields a defendant from damages liability for de- priving citizens of their constitutional rights if the de- fendant acted under color of a law before it was held unconstitutional? (i) ii PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT Petitioner, a Plaintiff-Appellant in the court below, is Mark Janus. Respondents, Defendants-Appellees in the court be- low, are American Federation of State, County, and Municipal Employees, Council 31; Simone McNeil, in her official capacity as the Acting Director of the Illi- nois Department of Central Management Services; and Illinois Attorney General Kwame Raoul. Other parties to the original proceedings below who are not Petitioners or Respondents include plaintiffs Illinois Governor Bruce Rauner, Brian Trygg, and Ma- rie Quigley, and defendant General Teamsters/Profes- sional & Technical Employees Local Union No. 916. Because no Petitioner is a corporation, a corporate disclosure statement is not required under Supreme Court Rule 29.6. -
Signed Opinions, Concurrences, Dissents, and Vote Counts in the U.S
Akron Law Review Volume 53 Issue 3 Federal Appellate Issue Article 2 2019 Signed Opinions, Concurrences, Dissents, and Vote Counts in the U.S. Supreme Court: Boon or Bane? (A Response to Professors Penrose and Sherry) Joan Steinman Follow this and additional works at: https://ideaexchange.uakron.edu/akronlawreview Part of the Courts Commons, Judges Commons, and the Litigation Commons Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Recommended Citation Steinman, Joan (2019) "Signed Opinions, Concurrences, Dissents, and Vote Counts in the U.S. Supreme Court: Boon or Bane? (A Response to Professors Penrose and Sherry)," Akron Law Review: Vol. 53 : Iss. 3 , Article 2. Available at: https://ideaexchange.uakron.edu/akronlawreview/vol53/iss3/2 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The University of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact [email protected], [email protected]. Steinman: Response to Penrose and Sherry SIGNED OPINIONS, CONCURRENCES, DISSENTS, AND VOTE COUNTS IN THE U.S. SUPREME COURT: BOON OR BANE? (A RESPONSE TO PROFESSORS PENROSE AND SHERRY) Joan Steinman* I. Response to Professor Penrose .................................. 526 II. Response to Professor Sherry .................................... 543 A. A Summary of Professor Sherry’s Arguments, and Preliminary Responses ........................................ 543 B. Rejoinders to Professor Sherry’s Arguments ...... 548 1. With Respect to the First Amendment ......... -
The Practice of Dissent in the Supreme Court
The Practice of Dissent in the Supreme Court Kevin M. Stack The United States Supreme Court's connection to the ideal of the rule of law is often taken to be the principal basis of the Court's political legitimacy.' In the Supreme Court's practices, however, the ideal of the rule of law and the Court's political legitimacy do not always coincide. This Note argues that the ideal of the rule of law and the Court's legitimacy part company with respect to the Court's practice of dissent. Specifically, this Note aims to demonstrate that the practice of dissent-the tradition of Justices publishing their differences with the judgment or the reasoning of their peers 2-cannot be justified on the basis of an appeal to the ideal of the rule of law, but that other bases of the Court's political legitimacy provide a justification for this practice. The Note thus has two aspirations. First, it seeks to provide a justification for the practice of dissent in the Supreme Court. Second, in pursuit of that I. See, e.g., Earl M. Maltz, The Concept of the Doctrine of the Court in ConstitutionalLaw, 16 GA. L. REV. 357, 402 (1982); cf.Jerry L. Mashaw, Prodelegation:Why Administrators Should Make Political Decisions, I J.L. ECON. & ORGANIZATION 81, 86 (1985) ("A consistent strain of our constitutional politics asserts that legitimacy flows from 'the rule of law."'). The Supreme Court's own discussion of the relation between the Court's association with the ideal of the rule of law and the Court's legitimacy in the joint opinion in Planned Parenthood v. -
YOVINO V. RIZO
Cite as: 586 U. S. ____ (2019) 1 Per Curiam SUPREME COURT OF THE UNITED STATES JIM YOVINO, FRESNO COUNTY SUPERINTENDENT OF SCHOOLS v. AILEEN RIZO ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 18–272. Decided February 25, 2019 PER CURIAM. The petition in this case presents the following question: May a federal court count the vote of a judge who dies before the decision is issued? A judge on the United States Court of Appeals for the Ninth Circuit, the Honorable Stephen Reinhardt, died on March 29, 2018, but the Ninth Circuit counted his vote in cases decided after that date.* In the present case, Judge Reinhardt was listed as the author of an en banc decision issued on April 9, 2018, 11 days after he passed away. By counting Judge Reinhardt’s vote, the court deemed Judge Reinhardt’s opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Cir- cuit panels must follow. See United States v. Caperna, 251 F. 3d 827, 831, n. 2 (2001). Without Judge Rein- hardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed. —————— *In Altera Corp. v. Commissioner, 2018 WL 3542989 (CA9, July 24, 2018), decided four months after Judge Reinhardt died, his vote was initially counted as one of the two judges in the majority. A footnote in the opinion stated: “Judge Reinhardt fully participated in this case and formally concurred in the majority opinion prior to his death.” Id., at *1, n. -
The First Amendment in Its Forgotten Years
The First Amendment in Its Forgotten Years David M. Rabbant TABLE OF CONTENTS I. Free Speech Before the Courts 522 A. Supreme Court Cases 524 I. Avoiding First Amendment Issues 525 Resisting Incorporation into the Fourteenth Amendment 525 Excluding Publications from the Mails 526 Neglecting First Amendment Issues 529 Limiting the Meaning of Speech 531 2. Addressing First Amendment Issues 533 Justice Holmes and the Bad Tendency of Speech 533 Review of Statutes Penalizing Speech 536 The First Amendment as the Embodiment of English Common Law 539 3. Hints of Protection 540 4. Summary 542 B. Decisions Based on State Law 543 1. The Bad Tendency Doctrine 543 Speech by Radicals 543 Obscenity and Public Morals 548 2. Libel 550 3. Political Speech 551 4. Labor Injunctions 553 5. Speech in Public Places 555 C. The Judicial Tradition 557 t Counsel, American Association of University Professors. 514 Prewar Free Speech II. Legal Scholarship 559 A. The Social Interest in Free Speech 563 B. The Distinction Between Public and Private Speech 564 1. Schofield's Formulation of the Distinction 564 2. Other Scholarly Support for the Distinction 566 C. The Expanding Conception of Free Speech 568 D. The Rejection of Blackstone 570 E. The Limits of Protected Speech 572 1. The Direct Incitement Test 572 2. Pound's Balancing Test 575 3. Schroeder's Test of Actual Injury 576 4. The Benefits of LibertarianStandards 578 F. The Heritage of Prewar Scholarship 579 III. The Role of the Prewar Tradition in the Early Develop- ment of Modern First Amendment Doctrine 579 A. -
BRNOVICH V. DEMOCRATIC NATIONAL COMMITTEE
(Slip Opinion) OCTOBER TERM, 2020 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus BRNOVICH, ATTORNEY GENERAL OF ARIZONA, ET AL. v. DEMOCRATIC NATIONAL COMMITTEE ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 19–1257. Argued March 2, 2021—Decided July 1, 2021* Arizona law generally makes it very easy to vote. Voters may cast their ballots on election day in person at a traditional precinct or a “voting center” in their county of residence. Ariz. Rev. Stat. §16–411(B)(4). Arizonans also may cast an “early ballot” by mail up to 27 days before an election, §§16–541, 16–542(C), and they also may vote in person at an early voting location in each county, §§16–542(A), (E). These cases involve challenges under §2 of the Voting Rights Act of 1965 (VRA) to aspects of the State’s regulations governing precinct-based election- day voting and early mail-in voting. First, Arizonans who vote in per- son on election day in a county that uses the precinct system must vote in the precinct to which they are assigned based on their address. See §16–122; see also §16–135. -
How to Read the Opinion of a Court
How to Read the Opinion of a Court Library Research Guide What is an Opinion? When a judge hears a case and arrives at a judgment, an explanation or analysis of the reasoning behind the decision is frequently written. The analysis, called an opinion, is then published in the “Reporter” for the court. Significant decisions are published also in other Reporters. Opinions, Dissenting Opinions, and Headnotes When several judges are sitting on the court that hears the case, the decision of the court can be unanimous, split, or determined by a simple majority. A judge is assigned to write the opinion if the court, but any participating judge may write a separate opinion of his own. He may agree with the majority on the most points but disagree on others, elaborating on points of agreement and disagreement. He may agree with the majority decisions for reasons other than those given in the majority opinion. He may disagree with the court’s decision and write a dissenting opinion of his own, or he may disagree without writing an opinion. Dissent in the courts appears to have increased over the years. Frequently, the reader will have to glean the relevant facts, issues, and holding from the body of the opinion. To facilitate this, Reporters generally print a brief summary of the case, called “Headnotes”, prior to the actual text of the court’s opinion. These headnotes are not authoritative, but merely reader aids. Information Contained in the Opinion The bulk of the opinion of a court will consist usually of an analysis which includes the plaintiff’s arguments and supporting cases, the defendant’s argument and supporting cases, and the court’s review of the cases, statutes, and facts applicable to the case at bar. -
Divide & Concur: Separate Opinions & Legal Change
University of Missouri School of Law Scholarship Repository Faculty Publications Faculty Scholarship 5-2018 Divide & Concur: Separate Opinions & Legal Change Thomas B. Bennett Barry Friedman Andrew D. Martin Susan Navarro Smelcer Follow this and additional works at: https://scholarship.law.missouri.edu/facpubs Part of the Administrative Law Commons, and the Courts Commons DIVIDE & CONCUR: SEPARATE OPINIONS & LEGAL CHANGE Thomas B. Bennettt Barry Friedman,ttAndrew D. Marttnttt & Susan Navarro Smelcertttt To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritativevoice of the majority. But what if this neglect, or even disdain, of concurring opinions is off the mark? In this article, we argue for the importance of concurring opinions, demonstrating how they serve as the pulse and compass of legal change. Concurring opinions let us know what is hap- pening below the surface of the law, thereby encouraging liti- gants to push the law in particular directions. This is particularly true of a type of concurrence we identify herefor the frst time: the "pivotal" concurrence. Pivotal concurrences occur when one or more members of a court majority also choose to write separately, undercutting the majority's rule in the case. Under the Supreme Court's "rule of fve," lower courts ought to disregardpivotal concurrences and adhere to the majority opinion. But as we show here, that is hardly the case. Utilizing a dataset created for this purpose, we demon- strate that pivotal concurrences are more common than one might think, are becoming yet more so, and-despite the Su- preme Court's admonition to the contrary-are taken quite seriously by lower courts. -
Connick V. Myers: New Restrictions on the Free Speech Rights of Government Employees Peter C
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Indiana University Bloomington Maurer School of Law Indiana Law Journal Volume 60 | Issue 2 Article 4 Spring 1985 Connick v. Myers: New Restrictions on the Free Speech Rights of Government Employees Peter C. McCabe III Indiana University School of Law Follow this and additional works at: http://www.repository.law.indiana.edu/ilj Part of the First Amendment Commons, and the Labor and Employment Law Commons Recommended Citation McCabe, Peter C. III (1985) "Connick v. Myers: New Restrictions on the Free Speech Rights of Government Employees," Indiana Law Journal: Vol. 60 : Iss. 2 , Article 4. Available at: http://www.repository.law.indiana.edu/ilj/vol60/iss2/4 This Note is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Connick v. Myers: New Restrictions on the Free Speech Rights of Government Employees INTRODUCTION How much first amendment' protection against state sanction of speech must a citizen relinquish by taking a job with the government? The United States Supreme Court has recently provided a partial answer to this important question with its decision in Connick v. Myers.2 Persons pursuing a career in public service who wish to criticize the internal operations of their agency will, after Connick, usually not be protected from state retaliation.3 Thus, despite a national commitment to "uninhibited, robust, and wide-open" debate on public issues 4-a debate which undoubtedly concerns "the manner in which government is operated or should be operated" 5-public employees must exercise an inordinate amount of discretion in how they contribute to the discussion of matters critical to self-government. -
1 PRESENT: All the Justices WILLIAM J
PRESENT: All the Justices WILLIAM J. HOWELL, ET AL. OPINION BY v. Record No. 160784 CHIEF JUSTICE DONALD W. LEMONS July 22, 2016 TERENCE R. McAULIFFE, ET AL. UPON A PETITION FOR WRITS OF MANDAMUS AND PROHIBITION The dominant role in articulation of public policy in the Commonwealth of Virginia rests with the elected branches. The role of the judiciary is a restrained one. Ours is not to judge the advisability or wisdom of policy choices. The Executive and Legislative Branches are directly accountable to the electorate, and it is in those political venues that public policy should be shaped. From time to time, disagreements between these branches of government require interpretation of our statutes, the Constitution of Virginia, or the United States Constitution. Our proper role is to interpret law and not to express our opinion on policy. The case before us today is such a case. Article II, Section 1 of the Constitution of Virginia sets out a general rule of law and then provides for an exception: “No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.” Va. Const. art. II, § 1 (emphasis added). On April 22, 2016, Governor Terence R. McAuliffe issued an Executive Order that inverts this rule-exception sequence. The practical effect of this Executive Order effectively reframes Article II, Section 1 to say: “No person who has been convicted of a felony shall be disqualified to vote unless the convicted felon is incarcerated or serving -
The Road to Bush V. Gore: the History of the Supreme Court's Use of the Per Curiam Opinion, 79 Neb
Nebraska Law Review Volume 79 | Issue 3 Article 2 2000 The Road to Bush v. Gore: The iH story of the Supreme Court's Use of the Per Curiam Opinion Laura K. Ray Widener Law, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Laura K. Ray, The Road to Bush v. Gore: The History of the Supreme Court's Use of the Per Curiam Opinion, 79 Neb. L. Rev. (2000) Available at: https://digitalcommons.unl.edu/nlr/vol79/iss3/2 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Laura Krugman Ray* The Road to Bush v. Gore:' The History of the Supreme Court's Use of the Per Curiam Opinion TABLE OF CONTENTS I. Introduction .......................................... 518 II. The History of the Per Curiam Opinion as a Form of Judicial Expression ................................... 521 A. The Background: An Instrument of Consensus ..... 521 B. The Transformation: The Decline of Consensus .... 524 III. The Per Curiam and the Idea of Individualism ........ 530 A. The Emergence of the Separate Voice .............. 530 B. The Pursuit of Consensus ..................... 533 IV. The Per Curiam as a Strategic Device ................. 536 A. Achieving Efficiency ............................... 537 B. Working by Indirection ............................ 538 C. Creating New Law ................................ 541 D. Using Procedure as a Screen ...................... 548 E. Disciplining Courts and Litigants .................. 549 V. The Per Curiam and Individual Expression ............ 550 A. The Minimalist Opinion and Efficiency: New York Times Co.